On February 3rd, the administrative court of justice has rendered a decision that some deem a historical decision by condemning the French State for inaction on climate change.

Originally, an online petition launched by 4 NGO (Greenpeace, Oxfam, the Foundation for nature and Mankind et the association Notre Affaire à tous) on December 18th, 2018 during the Yellow Vest movement. The aim of the petition was to obtain citizens’ support for a legal action against the French State. With more than 2 million signatures, that petition is the most signed in history in France. Strengthened by those signatures and by the public support received, those 4 NGO eventually made a court application and submitted an additional statement, asking the Court to grant their requests so as to see the State be held accountable for its inaction on climate change but also to see it forced to act. To succeed, the associations sought compensation for their ecological damages pursuant to the State’s deficiency and failures when it came to various environmental objectives that it set for himself but also for their moral damages caused by the State’s deficiency which have greatly impacted the collective interest that they uphold.
Presented as an unprecedented victory, that judgement is deceiving.

The administrative Court has first recognized that the French State had committed itself to fight climate change, by signing international conventions and by making public objectives to reach on scheduled deadlines in terms of greenhouse gas emissions and by recognizing “its capacity to actually act on that phenomenon”.
Two conditions by the negative were then found by the Court so as to determine if the State was directly responsible of the worsening of the ecological harm upon which relied the NGOs. In fact, the associations believed that the fact that the State didn’t reach the objectives that it had set for itself, in terms of greenhouse gas emissions and in terms of energy improvement, constituted a worsening of their ecological harm. The Court has refused to apply that theory by arguing that the gap between the objective and the achievement was not that significant once taken into account that the improvement of the energy efficiency was only “one of the sectorial politics that could be used in that field”. That same logic was also applied to refuse to grant compensations for failure to increase the share of renewable energies in the final gross consummation of energy.
The Court has however recognized the worsening of the ecological harm by the State for it had not respected the objectives set in terms of reduction of greenhouse gas emissions for 2050. In fact, once the State doesn’t follow faithfully the trajectory it had set for itself and produces in fact more gas emissions, gas that will have an impact for as long as it exists, the State renders itself responsible of the pollution caused by those gas. In terms of a lack of objectives to limit global warming to 1,5°C, the administrative Court notes that the claimants have not succeeded in establishing that the lack of objectives, if it was proven, that France had determined for itself was directly at the origin of the ecologic harm they were relying on. Thus, the only cause recognized by the Court to grant the compensation for the ecological harm is the failure to respect the commitments taken by the State as part of the first carbon budget. In term of responsibility, the Court judges the State responsible of « a part of the ecological harm » but there is no immediate compensation for it.
First, the Court starts by rejecting the first demand for compensation for an one-euro price on the grounds that, to recognize an ecological harm, we must favour reparations in kind and it was not proven that the State can’t do it and that, if it were to pay damages, the amount must be used to repair in kind and the amount asked for here could not fulfil that obligation, necessarily causing the Court to reject that request for financial repair.

Secondly, the claimants had also asked the Court for repairing in kind with the injunctions that would go with it. The Court accepts those requests of injunctions but only to repair the damage or to prevent a worsening of it caused by the State’s failure to respect its commitments taken during the first carbon budget. The Court can’t evaluate for now with precision which measures it should order the State to implement so as to repair that prejudice so it orders further investigations and will hand down its decision in two months. Finally, regarding the moral damage, associations obtained a one-euro compensation each for their prejudice.
What has been presented as an undeniable victory for the environment is in reality deceiving, far from the triumph that the press reflected. We can thus recognize some steps forward in the recognition of moral damage caused by the failure to act of the State even if this principle had already been recognized the 3rd Civil Chamber of the Cour de Cassation (France’s highest judicial Court) on June 8th, 2011, which had recognized the moral prejudice of an association when an ICPE (Installations registered for the protection of the environment) had not respected the measures that were regulating it. It has been years then since the moral damage of an association caused by a danger to the environment was recognized.
In term of ecological harm, the Court has rejected all requests of the associations except for one, the one regarding the failure of the State to respect the trajectory fixed by the first carbon budget. However, this decision only confirms the one of the Conseil d’Etat on November 19th, 2020 which had already judged illegal the State’s situation regarding that budget. The true victory has been delayed because the main objective, the true importance of that decision, rests in the injunctions that the administrative Court could direct to the State in terms of environmental politics during its next decision announced in that judgement.